Stepping beyond the strict confines of sign law this week, we turn to a Texas case exploring new boundaries in First Amendment law: regulations on drone footage. Late last month, the U.S. District Court for the Western District of Texas struck down those regulations as unconstitutional speaker-based restrictions that were also impermissibly vague.

By statute (the “Surveillance Statute”), Texas imposed civil and criminal penalties on the use of “an unmanned aircraft to capture an image of an individual or privately owned real property . . . with the intent to conduct surveillance on the individual or property captured in the image.” The statute exempted professional or scholarly research on behalf of a college or university, as well as several other categories. A similar statute (the “No-Fly Statute”) likewise imposed criminal penalties on drone flights over correctional facilities, various “critical” facilities, and sports venues unless the flights had a “commercial purpose.” Neither statute exempted newsgathering organizations or journalist.

Plaintiffs, a journalist and two media organizations, sued the state and, on summary judgment, the court ruled the statutes unconstitutional. The Court first concluded that the First Amendment’s protections extended to drone newsgathering, reasoning that the First Amendment protected both the right to publish information, and the process of generating publishable information. In that regard, the statutes were no different than penalties for ordinary filming.

The court further concluded that strict scrutiny applied because the statutes created both content- and speaker-based limitations. The Surveillance Statute applied provisions to images of individuals and private real property only, and therefore required the enforcing official to review the content to determine whether it was prohibited. Strict scrutiny equally applied to the Surveillance Statute because its application depended upon the drone pilot’s identity: Professors, students, employees of insurance companies, and real estate brokers all appeared on the permitted list, but journalists did not. The No-Fly statute also regulated on basis of the drone pilot’s purpose and was therefore content-based: imaging for a commercial purpose was permitted, but other purposes were prohibited.

After finding the statutes were content-based, the court predictably concluded that neither survived strict scrutiny. The statutes, the court reasoned, weren’t actually necessary to achieve the state’s interests in protecting privacy and private property rights. Nor were they narrowly tailored because they were both overbroad and underinclusive. The statutes reached well beyond a handful of limitations to protect privacy while at the same time their exemptions allowed the very same harms to occur.

Finally, the court also concluded that statutes were void for vagueness because they did not define “surveillance” and “commercial purposes,” leaving it unclear whether journalism would escape criminal penalties. Even Texas appeared to agree that those terms’ application could change with the circumstances, and the court agreed that the ambiguity would chill First Amendment activity.

Nat’l Press Photographers Ass’n v. McCraw, 1:19-CV-946-RP, 2022 WL 939517 (W.D. Tex. Mar. 28, 2022)